Common use of Excess Parachute Payment Tax Clause in Contracts

Excess Parachute Payment Tax. (i) If it is determined that any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes of this Section 6(b) and Section 6(c), each, a “Payment” and collectively, the “Payments”) from the Company to or for the benefit of the Executive to which the Executive first becomes entitled as a result of an event occurring on or before December 31, 2013 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax; provided, however, that if a reduction in the amount of the Payments (other than the Gross-Up Payment) to the Executive would cause the Payments not to be subject to the Excise Tax and the amount of such reduction does not exceed fifteen percent (15%) of the Payments (other than the Gross-Up Payment) that would be subject to the Excise Tax (the “Parachute Payments”), then the amount of Payments from the Company to the Executive shall be reduced by the minimum amount necessary so that the remaining Payments to the Executive will not be subject to the Excise Tax and the Executive will not be entitled to the Gross-Up Payment. In the event that the Payments to the Executive are to be reduced, the Company shall promptly give the Executive notice to that effect and the Executive may then elect, in his sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as, after such election, none of the Payments to the Executive are subject to the Excise Tax), and shall advise the Company in writing of his election within ten (10) days of his receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as, after such election, none of the Payments to the Executive are subject to the Excise Tax) and shall notify the Executive promptly of such election. Notwithstanding the foregoing, the Company shall be entitled to exhaust its remedies under Sections 6(b)(ii) and (iii) below prior to the payment of any Gross-Up Payment and the Executive shall not be entitled to any Gross-Up Payment if the Executive has not complied with Section 6(b)(ii) or (iii), as the case may be.

Excess Parachute Payment Tax. (i) If it is determined that any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes of this Section 6(b) and Section 6(c4(b), each, a “Payment” and collectively, the “Paymentspayment”) from the Company to or for the benefit of the Executive to which the Executive first becomes entitled as a result of an event occurring on or before December 31, 2013 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to the Executive an additional amount payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax; provided, however, that if a reduction in the amount of the Payments payments (other than the Gross-Up Payment) to the Executive would cause the Payments payments not to be subject to the Excise Tax and the amount of such reduction does not exceed fifteen percent (15%) of the Payments (other than the Gross-Up Payment) that would be subject to the Excise Tax (the “Parachute Payments”)$50,000, then the amount of Payments payments from the Company to the Executive shall be reduced by the minimum amount necessary so that the remaining Payments payments to the Executive will not be subject to the Excise Tax and the Executive will not be entitled to the Gross-Up Payment. In the event that the Payments payments to the Executive are to be reduced, the Company shall promptly give the Executive notice to that effect and the Executive may then elect, in his sole discretion, which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax), and shall advise the Company in writing of his election within ten (10) days of his receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may elect which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax) and shall notify the Executive promptly of such election. Notwithstanding the foregoing, the Company shall be entitled to exhaust its remedies under Sections 6(b)(ii) and (iiiSection 4(b)(iii) below prior to the payment of any Gross-Up Payment and the Executive shall not be entitled to any Gross-Up Payment if the Executive has not complied with Section 6(b)(ii) or (iii4(b)(iii), as the case may be.

Excess Parachute Payment Tax. (i) If it is determined that any payment, benefit or distribution provided for in distribution, whether pursuant to this Agreement or otherwise otherwise, (for the purposes of this Section 6(b) and Section 6(c4(b), each, a “Payment” and collectively, the “Paymentspayment”) from the Company to or for the benefit of the Executive to which the Executive first becomes entitled as a result of an event occurring on or before December 31, 2013 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to the Executive an additional amount payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax; provided, however, that if a reduction in the amount of the Payments payments (other than the Gross-Up Payment) to the Executive would cause the Payments payments not to be subject to the Excise Tax and the amount of such reduction does not exceed fifteen percent (15%) of the Payments (other than the Gross-Up Payment) that would be subject to the Excise Tax (the “Parachute Payments”)$50,000, then the amount of Payments payments from the Company to the Executive shall be reduced by the minimum amount necessary so that the remaining Payments payments to the Executive will not be subject to the Excise Tax and the Executive will not be entitled to the Gross-Up Payment. In the event that the Payments payments to the Executive are to be reduced, the Company shall promptly give the Executive notice to that effect and the Executive may then elect, in his sole discretion, which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax), and shall advise the Company in writing of his election within ten (10) days of his receipt of the Company’s notice; provided, however, notwithstanding the foregoing, with respect to any payment that is “nonqualified deferred compensation” within the meaning of Section 409A of the Code, (A) Executive may not elect which and how much of such payment shall be eliminated or reduced, (B) any elimination or reduction with respect to such payment shall occur following elimination of all payments that are not “nonqualified deferred compensation” within the meaning of Section 409A of the Code, and (C) any elimination or reduction with respect to such payment shall occur in the following order (x) by first eliminating or reducing cash payments and (y) then by eliminating or reducing any non-cash-based benefits, in each case in reverse order beginning with payments which are to be paid farthest in time. If no such election is made by the Executive within such period, the Company may elect which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax) and shall notify the Executive promptly of such election. Notwithstanding the foregoing, the Company shall be entitled to exhaust its remedies under Sections 6(b)(ii) and (iiiSection 4(b)(iii) below prior to the payment of any Gross-Up Payment and the Executive shall not be entitled to any Gross-Up Payment if the Executive has not complied with Section 6(b)(ii) or (iii4(b)(iii), as the case may be.

Excess Parachute Payment Tax. (i) If it is determined that any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes of this Section 6(b) and Section 6(c5(b), each, a “Payment” and collectively, the “Paymentspayment”) from the Company to or for the benefit of the Executive to which the Executive first becomes entitled as a result of an event occurring on or before December 31, 2013 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to the Executive an additional amount payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax; provided, however, that if a reduction in the amount of the Payments payments (other than the Gross-Up Payment) to the Executive would cause the Payments payments not to be subject to the Excise Tax and the amount of such reduction does not exceed fifteen percent (15%) of the Payments payments (other than the Gross-Up Payment) that would be subject to the Excise Tax (the “Parachute Payments”), then the amount of Payments payments from the Company to the Executive shall be reduced by the minimum amount necessary so that the remaining Payments payments to the Executive will not be subject to the Excise Tax and the Executive will not be entitled to the Gross-Up Payment. In the event that the Payments payments to the Executive are to be reduced, the Company shall promptly give the Executive notice to that effect and the Executive may then elect, in his sole discretion, which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax), and shall advise the Company in writing of his election within ten (10) days of his receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may elect which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax) and shall notify the Executive promptly of such election. Notwithstanding the foregoing, the Company shall be entitled to exhaust its remedies under Sections 6(b)(ii5(b)(ii) and (iii) below prior to the payment of any Gross-Up Payment and the Executive shall not be entitled to any Gross-Up Payment if the Executive has not complied with Section 6(b)(ii5(b)(ii) or (iii), as the case may be.

Excess Parachute Payment Tax. (i) If it is determined that any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes of this Section 6(b) and Section 6(c), each, a “Payment” and collectively, the “Paymentspayment”) from the Company to or for the benefit of the Executive to which the Executive first becomes entitled as a result of an event occurring on or before December 31, 2013 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to the Executive an additional amount payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax; provided, however, that if a reduction in the amount of the Payments payments (other than the Gross-Up Payment) to the Executive would cause the Payments payments not to be subject to the Excise Tax and the amount of such reduction does not exceed fifteen percent (15%) of the Payments payments (other than the Gross-Up Payment) that would be subject to the Excise Tax (the “Parachute Payments”), then the amount of Payments payments from the Company to the Executive shall be reduced by the minimum amount necessary so that the remaining Payments payments to the Executive will not be subject to the Excise Tax and the Executive will not be entitled to the Gross-Up Payment. In the event that the Payments payments to the Executive are to be reduced, the Company shall promptly give the Executive notice to that effect and the Executive may then elect, in his sole discretion, which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax), and shall advise the Company in writing of his election within ten (10) days of his receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may elect which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax) and shall notify the Executive promptly of such election. Notwithstanding the foregoing, the Company shall be entitled to exhaust its remedies under Sections 6(b)(ii) and (iii) below prior to the payment of any Gross-Up Payment and the Executive shall not be entitled to any Gross-Up Payment if the Executive has not complied with Section 6(b)(ii) or (iii), as the case may be.

Excess Parachute Payment Tax. (ivii) If it is determined that any payment, benefit or distribution provided for in this Agreement or otherwise (for the purposes of this Section 6(b) and Section 6(c), each, a “Payment” and collectively, the “Payments”) from the Company to or for the benefit of the Executive to which the Executive first becomes entitled as a result of an event occurring on or before December 31, 2013 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax; provided, however, that if a reduction in the amount of the Payments (other than the Gross-Up Payment) to the Executive would cause the Payments not to be subject to the Excise Tax and the amount of such reduction does not exceed fifteen percent (15%) of the Payments (other than the Gross-Up Payment) that would be subject to the Excise Tax (the “Parachute Payments”), then the amount of Payments from the Company to the Executive shall be reduced by the minimum amount necessary so that the remaining Payments to the Executive will not be subject to the Excise Tax and the Executive will not be entitled to the Gross-Up Payment. In the event that the Payments to the Executive are to be reduced, the Company shall promptly give the Executive notice to that effect and the Executive may then elect, in his sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as, after such election, none of the Payments to the Executive are subject to the Excise Tax), and shall advise the Company in writing of his election within ten (10) days of his receipt of the Company’s notice. If no such election is made by the Executive within such period, the Company may elect which and how much of the Payments shall be eliminated or reduced (as long as, after such election, none of the Payments to the Executive are subject to the Excise Tax) and shall notify the Executive promptly of such election. Notwithstanding the foregoing, the Company shall be entitled to exhaust its remedies under Sections 6(b)(ii) and (iii) below prior to the payment of any Gross-Up Payment and the Executive shall not be entitled to any Gross-Up Payment if the Executive has not complied with Section 6(b)(ii) or (iii), as the case may be.

Excess Parachute Payment Tax. (i) If it is determined that any payment, benefit or distribution provided for in distribution, whether pursuant to this Agreement or otherwise (for the purposes of this Section 6(b) and Section 6(c4(b), each, a “Payment” and collectivelypayment”), the “Payments”) from the Company to or for the benefit of the Executive to which the Executive first becomes entitled as a result of an event occurring on or before December 31, 2013 would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), the Company shall pay to the Executive an additional amount payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax; provided, however, that if a reduction in the amount of the Payments payments (other than the Gross-Up Payment) to the Executive would cause the Payments payments not to be subject to the Excise Tax and the amount of such reduction does not exceed fifteen percent (15%) of the Payments (other than the Gross-Up Payment) that would be subject to the Excise Tax (the “Parachute Payments”)$50,000, then the amount of Payments payments from the Company to the Executive shall be reduced by the minimum amount necessary so that the remaining Payments payments to the Executive will not be subject to the Excise Tax and the Executive will not be entitled to the Gross-Up Payment. In the event that the Payments payments to the Executive are to be reduced, the Company shall promptly give the Executive notice to that effect and the Executive may then elect, in his sole discretion, which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax), and shall advise the Company in writing of his election within ten (10) days of his receipt of the Company’s notice; provided, however, notwithstanding the foregoing, with respect to any payment that is “nonqualified deferred compensation” within the meaning of Section 409A of the Code, (A) Executive may not elect which and how much of such payment shall be eliminated or reduced, (B) any elimination or reduction with respect to such payment shall occur following elimination of all payments that are not “nonqualified deferred compensation” within the meaning of Section 409A of the Code, and (C) any elimination or reduction with respect to such payment shall occur in the following order (x) by first eliminating or reducing cash payments and (y) then by eliminating or reducing any non-cash-based benefits, in each case in reverse order beginning with payments which are to be paid farthest in time. If no such election is made by the Executive within such period, the Company may elect which and how much of the Payments payments shall be eliminated or reduced (as long as, after such election, none of the Payments payments to the Executive are subject to the Excise Tax) and shall notify the Executive promptly of such election. Notwithstanding the foregoing, the Company shall be entitled to exhaust its remedies under Sections 6(b)(ii) and (iiiSection 4(b)(iii) below prior to the payment of any Gross-Up Payment and the Executive shall not be entitled to any Gross-Up Payment if the Executive has not complied with Section 6(b)(ii) or (iii4(b)(iii), as the case may be.